Giving evidence during a criminal trial can be a daunting prospect for anybody and this is only likely to be magnified for those who are classed as vulnerable and who are complainants in sex cases.

  • Clare Ashcroft recently discussed the issues around pre-recorded cross-examination on BBC Radio 4’s Woman’s Hour, alongside a senior CPS prosecutor and a vulnerable witness HERE

Since the Youth Justice and Criminal Evidence Act 1999, we have become used to pre-recorded police questioning of complainants being played as evidence in chief during the trial process, so why the caveat to this extending to cross-examination?

Criminal trials by necessity focus upon the evidence given by all witnesses, be they prosecution or defence. In many sex cases, there is no forensic or medical evidence that supports or undermines the case for either side, so the jury has to analyse the evidence of the witnesses for consistency, veracity and credibility.

In sex cases more than any others, there will often be relevant material held by a third party. Despite undertakings and protocols agreed between various CPS areas and local authorities, unfortunately it can be many weeks and more likely months before such material is identified, reviewed and produced at court, much less disclosed.

While the accused’s account provides the starting point for the defence case, the content of third party material has an important role to play in testing the consistency and credibility of a witness.

While one of the aims of the present pilot is to facilitate cross-examination of vulnerable complainants at an earlier stage during proceedings, this should not be at the expense of a fair trial for the accused. Timely identification of the existence of third party material, together with earlier review of the same, is essential if the accused is not to be prejudiced by a cross-examination which is ignorant of the content of relevant material.

The alternative is to facilitate further questioning of the complainant at a later stage, in the event that such material has not been identified prior to the recording of cross-examination. And this would appear to remove the MoJ’s stated intention behind the pilot, namely to avoid the complainant having to be questioned on multiple occasions.

Whilst entire removal of the complainant from the process of having to attend court might allay the fears of a vulnerable witness, it can produce difficulties in a situation where, as a result of what has been said in evidence, the jury has a further question that it would like to be asked. The absence of the complainant would mean that relevant questions from the arbiters of fact (the jury) would remain unanswered. Can this be said to facilitate a fair trial for the accused?

 

 

Profile photo of Clare Ashcroft About Clare Ashcroft
Clare is a criminal defence barrister practising at Garden Court North. She is regularly instructed in cases of rape, serious sexual assault and serious violence, including murder and attempted murder. She also has experience in related areas such as police law and mental health law

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1 Comment

  • Helga 22 February 17, 2014 5:21 pm

    While I have every sympathy with genuine victims of sexual abuse who have to give evidence when the defendant denies guilt, and goes to trial I do think that this will make it even easier than it is already for those who make false allegations to pursue their malicious causes. This will inevitably result in even more miscarriages of justice in these cases. False allegations are already costing the tax payer £millions (if not more) in prosecutions and if they result in miscarriages of justice, approx £40K per innocent person in prison a year, family onto benefits, SS involvement, on release he can’t go back to live with his family so more benefits claimed, and the false accuser makes £K’s in “compensation”.

    False allegations is a scourge on the tax payer as well as to the falsely accused and wrongly convicted victims.

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